July 7, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiffs, through the wrongful acts of the defendant, in failing to deliver a telegram, within a reasonable time.
The allegations of the complaint, material to the questions involved, are as follows:
That on the 15th of May, 1908, the plaintiff's daughter, Daisy, became suddenly ill, at Yemassee, their home. That the plaintiff, Katie L. Owen, was at that time, on a visit to relatives in Savannah, Georgia. That about 8:30 a. m. the plaintiff delivered to the defendant for transmission, the following message:
"Yemassee, S.C. May 15, 1908.
To Eugene Owen, No. 603 39th Street, West, Savannah, Ga.: Tell mother to come home this evening. Daisy not well."
That about two o'clock p. m. on that day, the defendant's agent at Yemassee, called on the plaintiff, A.E. Owen, and informed him, that the message had not been delivered, as there was no such number and street in the city of Savannah; but, upon inquiry it was discovered, that the defendant had negligently, recklessly and wilfully changed part of the address, by substituting the word "East" for the word "West," so that it then read: "No. 603, 39th Street, East, Savannah, Ga."
That although the daughter was very ill, the telegram was mildly worded, for fear of shocking her mother, but that the agent at Yemassee was informed of her serious illness. That if the message had been delivered promptly, the plaintiff Katie L. Owen could have reached the bedside of her daughter, at a much earlier hour than she did. *Page 196
The defendant denied the allegations of negligence, recklessness, and wilfulness.
The jury rendered a verdict in favor of the plaintiffs for five hundred dollars, and the defendant appealed upon exceptions which will be reported.
First Exception: This exception assigns error, on the part of his Honor the presiding Judge, in refusing the defendant's motion for a continuance. Such motions are addressed to the discretion of the presiding Judge, and his ruling is not subject to appeal, unless there has been an abuse of discretion, which has not been made to appear in this case.
Second Exception: This exception raises the question, whether there was error, in refusing the defendant's motion to direct a verdict, on the ground that there was no testimony tending to show negligence, on the part of the defendant. The appellant's attorneys have not argued this exception; but waiving such objection, it cannot be sustained, as the testimony tends to show that they delay was unreasonable.
Third Exception: This exception assigns error in refusing to direct a verdict, as to the cause of action for punitive damages.
At the close of all the testimony, one of the defendants' attorneys, in making the motion for the direction of a verdict, stated that it was made on the following grounds:
"We have no further testimony to offer, and for the purpose of putting myself straight on the record, I move that the Court direct a verdict in this case, and my ground is: * * * that here is evidence of diligence, on the part of the company — uncontradicted evidence. * * * Now, the circumstances point clearly to the fact, that the company made an effort to deliver, and that they made a failure, and that there was a mistake, and they immediately took in up and *Page 197 straightened up things. We submit, that if there was evidence of an effort to deliver, there could not be any wilfulness or wantonness, on the part of the defendant company, that being uncontradicted, and taking the circumstances and the facts, it strikes me, that it only becomes a question of law, for the Court to determine, and not a question for the jury. For that reason, we ask the Court to direct a verdict for the defendant."
In ruling upon the motion, his Honor the presiding Judge said:
"Well, it appears to me, that the case will have to go to the jury. The law is that unreasonable delay in delivering the telegram, raises a presumption of negligence. Now, as to whether or not that unreasonable delay was not only negligence, but caused by wilfulness and wantonness, the burden of proving which, is up to the plaintiff, is a question for the jury in this particular case."
The motion was for the direction of a verdict generally, and his Honor the Circuit Judge so understood it.
In the case of Machen v. Tel. Co., 72 S.C. 256,51 S.E. 697, the rule as to nonsuits is thus stated:
"The cases are numerous to the point, that where the complaint alleges damages, as the result of negligence, and as the result of wilful misconduct, a nonsuit cannot be granted, as to the whole case, if there by any testimony tending to show damages, as the result of either negligence or wilfulness. * * * In all the cases cited above, the motion for nonsuit was directed to the whole case, and the point decided was that nonsuit was improper, if there by any evidence tending to support a verdict for damages, either for negligence or wilful misconduct."
This language is quoted with approval in the case of Carter v. Tel. Co., 73 S.C. 430, 53 S.E. 539. Under these authorities we are constrained to rule, that the motion for nonsuit was properly refused. *Page 198 Fourth Exception: This assignment of error, is based upon the proposition, that punitive damages are not recoverable, if there is undisputed evidence of an effort to deliver a telegram.
It is only necessary to say, that time and the degree of diligence used, in the efforts to deliver the message, must be taken into consideration, in determining this question. It would therefore have been error for the Circuit Judge to have charged the request, without modification.
Fifth Exception: This exception raises the question, whether the presiding Judge erred in refusing to charge, that the delivery of the message to the butler, at the house in which the addressee of the telegram was residing, was a good delivery.
This exception must be overruled for the reason, that the presiding Judge could not have charged as requested, without invading the province of the jury.
Sixth Exception: This exception presents practically the same question as is raised by the fifth exception, and, is therefore overruled.
Judgment affirmed.